An Important Judgment.

Evening Post, Volume XXXVI, Issue 139, 11 December 1888, Page 2

An Important Judgment.

A decision of some importance was this morning given in the Magistrate's Court by Mr. Robinson, R.M. The case, a oivil one, heard laßt week, was brought by the Wellington Loan Company against L. W. Loveday for th« reoovery of £22, the amount of a promissory note whioh had been endorsed by the defendant. The defendant, for whom Mr. Chapman acted, at the hearing contended that as the note was not properly stamped at the time he attached his signature he was not liable. The signature was not denied. His Worship said the whole oase turned upon the oonstruotion of sections 61, 73, 77, and 78 of the Stamp Act, 1882, and the time of stamping. It appeared from the evidence that the promissory note was not stamped by the maker (Felix Jones) nor by the defendant Loveday, in whose favour it was made. It was received unstamped by the manager of the plaintiff company. At some subsequent time a sufficient adhesive stamp was affixed. This stamp was oanoelled by tbe secretary of the company, Mr. M'Lean, who placed on it his own initials and the date ; it was also stamped with the seal of the oompany. The note was endorsed with the seal of the company, and the signature of the secretary. The then secretary, His Worship said, in evidenoe said he had no recolleotion of the fact of affixing the stamp, nor of the cancellation, bnt could only say that the date affixed was not the true date, as the note oertainly was not in his hands until some days after the date mentioned, when he received it through the post unstamped. The defendant and another witness had sworn positively that in March, 1887, when they called together at the company's offioe and saw the note, it was still unstamped. This was nearly three months after the promissory note had been dishonoured. Referring to tho cases cited, his Worship said that according to them the construction of the apparently conflicting 'seotions of the Stamp Aqt, 1882, was elaborately argued and considered. The law, as left by those decisions, he took to be that a promissory note may be stamped with an adhesive stamp and the stamp cancelled by I any holder, and may then be given in evidenoe notwithstanding the prohibition in sub-section 78 of the Act ; and upon further authority, that when a promissory note had been stamped with a sufficient stamp by the proper person at the proper time, it must be held to be "stamped" within tho meaning of the Act, even though the stamp had not been cancelled ; but that the onus ia cast on the person tendering the instrument in evidence ,to show that the stamp was affixed by the right person at the right time. In the present case the note was not stamped by the maker or the first endorser, but had been stamped by the present holders and endorsed by them. The cancellation was plainly insufficient, for the date put on the stamp was not the true date as was required by section 61. It therefore lay with the plaintiff to show that the stamp was affixed at the proper time, and this, according to the Act, was at the time of " making, endorsing, Ao." — that was to say, an endorser oould only affix a stamp at the time of endorsing. But as no direot evidence had been given for the plaintiff as to when the stamp was affixed or when the endorsement was made ; and, as already remarked, two witnesses on the other side swore that it was not stamped for about three months after dishonour, he did not see how the plaintiffs oonld recover. Judgment would be given for the defendant, with £2 2s costs. Mr. Gray appeared for the plaintiff company.